1. "Proof that a defendant has been convicted of the
offense of driving under the influence of alcohol in another
state is similar to proof of any other material fact in a
criminal prosecution; once the State has introduced sufficient
evidence to lead impartial minds to conclude that the defendant
had once before been convicted of driving under the influence of
alcohol, the State has made a prima facie case."
Syllabus Point 1, State ex rel. Kutsch v. Wilson, 189
W.Va. 47, 427 S.E.2d 481 (1993).

2. "Notwithstanding the fact that another state's driving
under the influence statute may contain additional elements not
found in West Virginia Code 17C-5-2 (1996), an out-of-state
conviction may properly be used for sentence enhancement pursuant
to West Virginia Code 17C-5-2(k) provided that the factual
predicate upon which the conviction was obtained would have
supported a conviction under the West Virginia DUI statute."
Syllabus Point 2, State ex rel. Conley v. Hill, ___
W.Va. ___, ___ S.E.2d ___ (No. 23839 May 30, 1997).

3. Unless it can be shown that the factual predicates upon
which a prior out-of-state driving under the influence conviction
was obtained failed to include any element of this State's
driving under the influence statute, the introduction of an
out-of-state driving under the influence conviction constitutes a
prima facie case for sentence enhancement. Whether the
out-of-state conviction satisfies the requirements of this
State's enhancement statute is a question of law.

4. "Assuming that an error is 'plain,' the inquiry must
proceed to its last step and a determination made as to whether
it affects the substantial rights of the defendant. To affect
substantial rights means the error was prejudicial. It must have
affected the outcome of the proceedings in the circuit court, and
the defendant rather than the prosecutor bears the burden of
persuasion with respect to prejudice." Syllabus Point 9,
State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. "A defendant who is convicted of an offense in a trial
before a magistrate or in municipal court and exercises his
statutory right to obtain a trial . . . in the circuit court is
denied due process when, upon conviction at his second trial, the
sentencing judge imposes a heavier penalty than the original
sentence. W. Va. Const. art. 3, 10." Syllabus Point 2, State
v. Bonham, 173 W.Va. 416, 317 S.E.2d 501 (1984).

Starcher J.:

Donald E. Williams, Jr., appeals his conviction in the Circuit
Court of Mercer County for driving under the influence, second
offense, in violation of W.Va. Code, 17C-5-2 [1996]. Mr.
Williams was sentenced to six months in jail, but the sentence
was suspended and as an alternate sentence, he was sentenced to
serve six months in home incarceration, with specific limitations
under W.Va. Code, 62-11B-5 [1994]. On appeal Mr.
Williams argues: first, that his offense should be reduced to a
first offense because his previous conviction in Virginia could
have been for "operating" rather than
"driving" a vehicle; second, that the circuit court
committed plain error in the jury instructions; and third, that
the circuit court erred in re-sentencing him. Based on our review
of the record, we find no merit in Mr. Williams' assignments of
error, and therefore, we affirm his conviction.

I.

Facts and Background

On March 10, 1994, an officer of the City of Princeton Police
Department saw a car driven by Mr. Williams traveling at a high
rate of speed and emitting smoke. Mr. Williams maintains that
another person was driving the car and he was a passenger. The
officer saw the car pull over and stop. Mr. Williams got out and
lifted the hood to check the engine. Fearing fire because of the
smoke coming from the car, the officer also investigated the
problem. Because Mr. Williams was staggering and smelled of
alcohol, the officer performed several field sobriety tests.
After Mr. Williams failed the sobriety tests, he was arrested for
driving under the influence.

At the police station, Mr. Williams was given an intoxilyzer
test, which indicated a .21 percent blood alcohol level. Mr.
Williams was charged with violating W.Va. Code,
17C-5-2(h) [1986](1)

, which provides for an enhanced penalty for a second offense.
The criminal complaint charged that Mr. Williams did "drive
and operate a motor vehicle in this state while under the
influence of Alcohol.[sic] this being a second offense." The
criminal complaint also indicated the .21 percent intoxilyzer
test results. The predicate offense for enhancement was Mr.
Williams' guilty plea on October 3, 1990 to a driving under the
influence charge in Tazewell, Virginia.

Mr. Williams was originally tried in magistrate court on the
second offense. After his conviction therein, he appealed to the
circuit court where he was again convicted by a jury.(2) Because the original sentence
imposed by the magistrate did not outline the conditions of Mr.
Williams' six-month home incarceration sentence, the circuit
court remanded the case to magistrate court for clarification of
the conditions of home incarceration. After the magistrate court
imposed a general sentence of six months of home incarceration
with work release to be monitored by the home incarceration
officer, the circuit court, by order entered on October 5, 1995,
imposed the same sentence with detailed conditions for the home
incarceration. The circuit court-imposed conditions included: (1)
work release limited to eight (8) hours per day, five (5) days
per week; (2) complete prohibition on operating a vehicle; (3)
payment for electronic monitoring: (4) prohibition on use of any
drugs or alcohol, and a screening requirement; and (5)
requirement of treatment for alcohol problem.

Following sentencing, Mr. Williams appealed to this Court
alleging problems with the use of his prior conviction of driving
under the influence in Virginia, with the jury instructions, and
with the "additional" conditions of home incarceration
imposed by the circuit court.

II.

Discussion

A.

Prior Conviction

Mr. Williams' first assignment of error is that the
enhancement to second offense driving under the influence cannot
be based on his prior conviction in Virginia because the Virginia
statute makes it unlawful "to drive or operate any
motor vehicle. . . while such person is under the influence of
alcohol." (emphasis added). Va. Code Ann. 18.2-266
[1994]. Mr. Williams maintains that because his Virginia
conviction may be for operating rather than driving, the elements
are too dissimilar to allow for enhancement without the State
showing of the facts of his Virginia conviction.

W.Va. Code, 17C-5-2(l) [1996] permits, for
enhancement purposes, the use of a conviction under another
jurisdiction's statute provided that statute has the "same
elements as an offense" as our statute.(3)
Syllabus Point 1 of State ex rel. Kutsch v. Wilson, 189
W.Va. 47, 427 S.E.2d 481 (1993) (Ohio's driving under the
influence statute has the same elements for blood alcohol
concentration as West Virginia although expressed in different
terminology) states:

Proof that a defendant has been convicted of the offense of
driving under the influence of alcohol in another state is
similar to proof of any other material fact in a criminal
prosecution; once the State has introduced sufficient evidence to
lead impartial minds to conclude that the defendant had once
before been convicted of driving under the influence of alcohol,
the State has made a prima facie case.

Recently in State ex rel. Conley v. Hill, ___ W.Va.
___, ___ S.E.2d ___ (No. 23839 May 30, 1997) (previous driving
under the influence conviction in Ohio may, depending on the
facts of the conviction, be used for enhancement in West
Virginia), we recognized that the terms "drive" and
"operate" can be accorded divergent meanings, thereby
implying different statutory elements. In Conley, we
also recognized that most out-of-state driving under the
influence convictions "include the prerequisite vehicular
movement for a violation of this State's laws" and found it
"improvident to indiscriminately expunge a defendant's prior
DUI offenses for sentence enhancement purposes. (footnote
omitted)." ___ W.Va. at ___, ___ S.E.2d at ___, Slip op. at
9. Syllabus Point 2 of Conley states:

Notwithstanding the fact that another state's driving under
the influence statute may contain additional elements not found
in West Virginia Code 17C-5-2 (1996), an out-of-state conviction
may properly be used for sentence enhancement pursuant to West
Virginia Code 17C-5-2(k) provided that the factual predicate upon
which the conviction was obtained would have supported a
conviction under the West Virginia DUI statute.

In this case, we find that the prosecution made a prima
facie case for a second offense driving under the influence
based on Mr. Williams' guilty plea to driving under the influence
in Virginia. Virginia's mere use of the term "operate"
in its driving under the influence statute is insufficient to
find that "same elements" are not required in Virginia.
Unless it can be shown that the factual predicates upon which a
prior out-of-state driving under the influence conviction was
obtained failed to include any element of this State's driving
under the influence statute, the introduction of an out-of-state
driving under the influence conviction constitutes a prima
facie case for sentence enhancement.(4)
Whether the out-of-state conviction satisfies the requirements of
this State's enhancement statute is a question of law. No details
of Mr. Williams' prior Virginia conviction were in the record,
and there was no showing that the elements in this particular
case were not similar.

Given the failure to show that the elements in Mr. Williams'
prior driving under the influence conviction in Virginia were not
similar, we find that the circuit court did not err in allowing
the use for enhancement of Mr. Williams' prior Virginia
conviction for driving under the influence.

B.

Jury Instructions

In his second assignment of error, Mr. Williams alleges that
the circuit court erred in instructing the jury because the
warrant charged Mr. Williams with driving under the influence.
Mr. Williams maintains that the circumstances are similar to our
recent case of State v. Blankenship, 198 W. Va. 290, 480
S.E.2d 178 (1996), which held in Syllabus Point 1 that "[a]n
instruction which informs the jury that it can return a verdict
of guilty of a crime charged in the indictment by finding that
the defendant committed acts constituting a crime not charged in
the indictment is reversible error."

The State maintains that the jury instructions when considered
as a whole are adequate, and that Blankenship should not
be applied to this case because the defense failed to object and
the error, if any, did not affect the outcome.

In this case the warrant charged Mr. Williams with driving
under the influence and also stated that Mr. Williams "blew
a .216 on the Intoxilyzer 5000." The charge to the jury
included the following:

Any person who drives a vehicle in this State while he is
under the influence of alcohol or has an alcohol concentration in
his blood of ten hundredths of one percent or more by weight
shall be guilty of driving under the influence.

Unlike Blankenship, no objection was raised and,
therefore, the question is whether the error, if any, falls
within our doctrine of "plain error."(5)

State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
discusses in detail the plain error doctrine and requires that
the error "must have affected the outcome of the
proceedings" and places on the defendant "the burden of
persuasion with respect to prejudice." Syllabus Point 9 of State
v. Miller provides:

Assuming that an error is "plain," the inquiry must
proceed to its last step and a determination made as to whether
it affects the substantial rights of the defendant. To affect
substantial rights means the error was prejudicial. It must have
affected the outcome of the proceedings in the circuit court, and
the defendant rather than the prosecutor bears the burden of
persuasion with respect to prejudice.

In this case, there is no showing by the defense that the
alleged error was prejudicial in that it affected the outcome of
the proceedings. Without such a showing, the plain error doctrine
cannot be considered. Based on the foregoing, we find no merit in
the second assignment of error concerning the plain error
doctrine.

C.

Home Incarceration Sentence

In his final assignment of error, Mr. Williams maintains that
the circuit court, by specifying the terms of his home
incarceration sentence, impermissibly increased his sentence in
violation of Syllabus Point 2 of State v. Bonham, 173 W.
Va. 416, 317 S.E.2d 501 (1984), which provides:

A defendant who is convicted of an offense in a trial before a
magistrate or in municipal court and exercises his statutory
right to obtain a trial . . . in the circuit court is denied due
process when, upon conviction at his second trial, the sentencing
judge imposes a heavier penalty than the original sentence. W.Va.
Const. art. 3, 10.(6)

In this case, the magistrate sentenced Mr. Williams to six
months of home incarceration, but the magistrate's sentence
failed to define the terms and conditions of Mr. Williams' home
incarceration. After the conviction in circuit court, the circuit
court returned the case to the magistrate to impose a correct
legal sentence and required "that this matter. . . be
returned to this [Circuit] Court." W.Va. Code,
62-11B-5 [1994] states that an order for home incarceration shall
include certain requirements.(7)
When the magistrate's sentence again failed to include the
conditions required under W. Va. Code, 62-11B-5 [1994](8), the circuit court corrected the
sentence by specifying the conditions of home incarceration.

Rule 35 (a)[1996], West Virginia Rules of Criminal
Procedure, provides that a "court may correct an
illegal sentence at any time and may correct a sentence imposed
in an illegal manner within the time provided herein for the
reduction of sentence." The circuit court, by order entered
on October 5, 1995, specified the conditions for Mr. Williams'
home incarceration. The conditions imposed by the circuit court's
order permitted limited work release, prohibited operation of a
vehicle, required payment for costs of electronic monitoring,
prohibited the use of drugs or alcohol and required treatment for
alcohol problems.

We find that the circuit court's order of October 5, 1995 did
not impose a heavier sentence than the magistrate's sentence.
Both courts sentenced Mr. Williams to six months of home
incarceration. The circuit court's order corrected the
magistrate's previous order so that it met the requirements of W.
Va. Code, 62-11B-5 [1994].

Finally, Mr. Williams argues that he should be allowed to
drive during his six months of home incarceration because his
driver's license was not administratively suspended. We note that
W.Va. Code, 62-11B-5(8) [1994] permits the court to
impose "other conditions." See note 7 for Code
provisions. However, the Legislature has not restricted the
conditions of home incarceration that a court may impose. Mr.
Williams has no right to drive while he is incarcerated, and we
find the circuit court committed no error in the conditions
imposed during Mr. Williams' home incarceration.

For the above-stated reasons, the decision of the Circuit
Court of Mercer County is affirmed.

A person violating any provision of subsection (b), (c), (d),
(e), (f), (g) or (i) of this section shall, for the second
offense under this section, be guilty of a misdemeanor, and, upon
conviction thereof, shall be confined in jail for a period of not
less than six months nor more than one year, and the court may,
in its discretion, impose a fine of not less than one thousand
dollars nor more than three thousand dollars.

W. Va. Code, 17C-5-2(d) [1996] provides:

Any person who:

(1) Drives a vehicle in this state while:

(A) He is under the influence of alcohol; or

(B) He is under the influence of any controlled substance; or

(C) He is under the influence of any other drug; or

(D) He is under the combined influence of alcohol and any
controlled substance or any other drug; or

(E) He has an alcohol concentration in his or her blood of ten
hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, which jail term shall include actual confinement of
not less than twenty-four hours, and shall be fined not less than
one hundred dollars nor more than five hundred dollars.

2. This case arose before the effective
date of W.Va. Code 50-5-13 [1994], which in subsection
(b) restrictes an appeal of a criminal proceeding tried before a
jury in magistrate's court to "a hearing on the record"
before the circuit court. See Collins v. Bedell, 194
W.Va. 390, 460 S.E.2d 636 (1995).

(l) For purposes of subsections (j) and (k) of this section
relating to second, third and subsequent offenses, the following
types of convictions shall be regarded as convictions under this
section:

* * *

(3) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as
an offense described in subsection (a), (b), (c), (d), (e), (f)
or (g) of this section, which offense occurred after the tenth
day of June, one thousand nine hundred eighty-three. (emphasis
added.)

4. See Syllabus Point 3, Carte
v. Cline, ___ W.Va. ___, ___ S.E.2d ___ (No. 23862 May 9,
1997) (our driving under the influence statute "does not
require that a police officer actually see or observe a person
move, drive, or operate a motor vehicle while the officer is
physically present before the officer can charge that person with
DUI under this statute [W.Va. Code 17C-5A-1a(a) (1994)], so long
as all the surrounding circumstances indicate the vehicle could
not otherwise be located which it is unless it was driven there
by that person").

5. The State maintains that there was no
error in this case because unlike Blankenship, the
indictment alleged that Mr. Williams' blood alcohol content
exceeded ten hundredths of one percent by weight. However, we do
not address the Blankenship arguments because no
objection was made to the circuit court and therefore the error,
if any, must be considered under the plain error doctrine.

6. See W.Va. Code, 50-5-8(b)
[1994] and 50-5-13(b) [1994] for a defendant's right to a jury
trial.

An order for home incarceration of an offender under section
four [ 62-11B-4] of this article shall include, but not
be limited to, the following:

(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:

(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;

(B) Unemployed and seeking employment approved for the
offender by the circuit court or magistrate;

(C) Undergoing medical, psychiatric, mental health treatment,
counseling or other treatment programs approved for the offender
by the circuit court or magistrate;

(D) Attending an educational institution or a program approved
for the offender by the circuit court or magistrate;

(E) Attending a regularly scheduled religious service at a
place of worship;

(F) Participating in a community work release or community
service program approved for the offender by the circuit court,
in circuit court cases; or

(G) Engaging in other activities specifically approved for the
offender by the circuit court or magistrate.

(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order
of home incarceration.

(3) A requirement that the offender abide by a schedule,
prepared by the probation officer in circuit court cases, or by
the supervisor or sheriff in magistrate court cases, specifically
setting forth the times when the offender may be absent from the
offender's home and the locations the offender is allowed to be
during the scheduled absences.

(4) A requirement that the offender is not to commit another
crime during the period of home incarceration ordered by the
circuit court or magistrate.

(5) A requirement that the offender obtain approval from the
probation officer or supervisor or sheriff before the offender
changes residence or the schedule described in subdivision (3) of
this section.

(6) A requirement that the offender maintain:

(A) A working telephone in the offender's home;

(B) If ordered by the circuit court or as ordered by the
magistrate, an electronic monitoring device in the offender's
home, or on the offender's person, or both; and

(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or any time
home incarceration is ordered by the magistrate.

(7) A requirement that the offender pay a home incarceration
fee set by the circuit court or magistrate. If a magistrate
orders home incarceration for an offender, the magistrate shall
follow a fee schedule established by the supervising circuit
judge in setting the home incarceration fee.

(8) A requirement that the offender abide by other conditions
set by the circuit court or by the magistrate. (emphasis added).

Order for home confinement is attached and upon compliance
with home confinement conditions defendant be considered to leave
his home for the purpose of work release.

The August 15, 1995 magistrate home incarceration order
provided, in pertinent part:

that Mr. Williams "be placed on home confinement for a
period of 6 mo [sic] days/months at the rate of $5.00 per day, to
be assessed to the said defendant. Home confinement hook up
[costs are] $25.00."